Article 7 Protection for Associated British Ports

(1)

The following provisions of this article shall, unless otherwise agreed in writing between Associated British Ports (in this article referred to as “ABP”) and the Authority, have effect.

(2)

In this article—

“accumulation” means any accumulation of silt or other material in the protected areas;
“construction” includes execution and placing, maintenance, extension, enlargement, alteration, replacement, relaying and removal; and “construct” and “constructed” have corresponding meanings;
“damage” means any obstruction or danger to navigation within the protected areas, or any adverse effects to any works owned by, or under the management or control of, ABP within the protected areas, or any detrimental effects on the operation of the protected areas, or on the fulfilment of ABP’s duties in connection with the protected areas;
“erosion” means any erosion of the bed of the sea or of any lands within the protected areas;
“the protected areas” means the port of ABP at Lowestoft and the seaward approaches thereto from time to time; and
“specified work” means any permanent or temporary work or operation authorised by the 1986 Act (which includes for the avoidance of doubt, any dredging and any exploratory geotechnical investigations that may be undertaken).

(3)

If, during or after the construction of a specified work, and wholly or partly in consequence of its construction there is caused or created an accumulation or erosion or alteration of the tidal flow or littoral drift which causes damage, or reasonable expectation of damage, the Authority, if so required by ABP shall remedy such accumulation, erosion, alteration of tidal flow or littoral drift, in the manner specified in paragraph (4) below and, if it refuses or fails so to do, ABP may itself cause work to be done and, provided that ABP has notified the Authority in writing of its intention to cause such work to be done prior to carrying out such work and has acted reasonably in concluding that it should do such work, ABP may recover the reasonable cost thereof from the Authority.

(4)

For the purposes of this article—

(a)

in the case of an accumulation, the remedy shall be its removal; and/or such other protective works or measures as may be reasonably required by ABP; and

(b)

in the case of erosion or alteration of tidal flow or littoral drift, the remedy shall be the carrying out of such reconstruction works and/or such other protective works or measures as may be reasonably required by ABP.

(5)

If the Authority establishes by surveys, inspections, tests or sampling, and without unreasonably delaying the execution of any remedial action required under paragraph (3) above, that such accumulation or erosion or alteration of tidal flow or littoral drift would have been caused in any event by factors other than the construction of a specified work the Authority shall be liable to remedy such accumulation or erosion or alteration of tidal flow or littoral drift only to the extent that the same is attributable to such construction.

(6)

The Authority’s obligations pursuant to paragraphs (3) to (5) above shall commence upon the commencement of the construction of a specified work and terminate at the end of the first continuous period of ten years commencing after completion of the specified works during which no remedial work is required pursuant to this article.

(7)

For the purposes of paragraph (6) above the date of completion of a work shall be the date on which it is brought into use.

(8)

Any difference arising between the Authority and ABP under this article (other than a difference as to its meaning or construction) shall be determined by arbitration in the manner provided by the 1986 Act.